4.  The applicant is the owner of the daily newspaper “der Standard”.
5.  In the issue of “der Standard” of 1 March 2000 the applicant published an article in the context of criminal proceedings on charges of large scale fraud and embezzlement against a former Member of Parliament of the Austrian Freedom Party (Freiheitliche Partei Österreichs, “the FPÖ”), Mr Peter Rosenstingl.
6.  The article whose author, D.G., is a well-known court room reporter, reads as follows:
“‘I had more important things to do’ –
Ewald Stadler claims he was unaware of Rosenstingl’s loan machinations
As expected, no Freedom Party (FPÖ) politicians offered their resignation yesterday in connection with the Rosenstingl trial. (On the contrary: the FPÖ’s long-serving legal counsel has suddenly become Minister of Justice.)
There is no way back for the two in the dock, however. Peter Rosenstingl, the former FPÖ member of the National Assembly, is accused of having colluded in aggravating the collapse of the poultry firm belonging to his brother Herbert, known as ‘Chicken’. The public prosecutor has assessed the damage at 240 million schillings. Eleven people in all are said to have played a part in the chicken debacle. One of them may have been the former leader of the Lower Austrian branch of the FPÖ, Bernhard Gratzer.
He knew little about it
One member of Jörg Haider’s former chicken coop (if this casual expression is permitted) who is still in office took his turn in the witness box yesterday: Ewald Stadler, now a member of the Lower Austrian regional government but at the time the leader of the FPÖ’s parliamentary group. In that capacity he is alleged to have known even before November 1997 that loans and guarantees from the Circle of Liberal Entrepreneurs (RFW) nourished Rosenstingl’s chickens, fed his suppliers and enticed his creditors. In any event, Peter Rosenstingl claims to have ‘handed over all documents’ to Stadler. But Stadler has no recollection of this. ‘As parliamentary group leader I had more important things to do than worry about lists of that kind’, he retorts. In short, the loan machinations apparently passed from him, like a cup, almost without trace.
Stadler claims that he heard about only one loan, in which Rosenstingl had agreed to borrow 3.5 million schillings from RFW funds. Stadler asked for an explanation. Rosenstingl duly ‘served up a cock-and-bull story’ and referred to an investment on favourable terms and with a better rate of interest in his tax consultancy firm, Omikron.
He is alleged to have reiterated that version of events in mid-November 1997 at a meeting of the Lower Austrian party executive, in the presence of the federal party leaders. And it was believed. Stadler himself was doubtful and made an early exit.
‘Whether the federal party was informed or not is a matter on which everyone may now form his or her own view’, the judge summed up exclusively for all the journalists in the courtroom. ‘However, it will not settle the criminal proceedings.’ Irrespective of this, the fraud trial will drag on further today with witness statements.”
7.  The article was accompanied by a photograph of Mr Stadler and the following text:
“The former leader of the FPÖ’s parliamentary group, Ewald Stadler, gives evidence defending the party’s ignorance of the co-financing of the Rosenstingl collapse”.
8.  The criminal proceedings against Mr Rosenstingl received extensive media coverage. Mr Rosenstingl and a number of co-accused were eventually convicted of large scale fraud and embezzlement by the Vienna Regional Criminal Court. Its judgment was confirmed by the Supreme Court on 25 September 2001.
9.  On 17 August 2000 Mr Stadler brought private prosecution proceedings for defamation under the Media Act (Mediengesetz) as regards the statement:
“He [Mr Stadler] is alleged to have known even before November 1997 that loans and guarantees from the Circle of Liberal Entrepreneurs (RFW) nourished Rosenstingl’s chickens, fed his suppliers and enticed his creditors. In any event, Peter Rosenstingl claims to have handed over all documents to Stadler.”
10.  On 29 May 2001 the St. Pölten Regional Court (Landesgericht) held a hearing. Mr Rosenstingl, who had been called as a witness, had refused to give evidence on the ground that he risked incriminating himself. According to the minutes, the applicant contested that Mr Rosenstingl was entitled to refuse giving evidence and requested the court to impose a fine on him. The Court dismissed the request for the taking of evidence, finding that it was irrelevant and that the case was ready for decision. It did not give any detailed reasons.
11.  At the close of the hearing, the court gave judgment ordering the applicant to pay compensation of 15,000 Austrian schillings (ATS, that is about 1,090 euros (EUR)) to Mr Stadler and to publish the judgment.
12.  In the Regional Court’s view, the incriminated passage meant that Mr Stadler already new of Mr Rosenstingl’s fraudulent transactions before November 1997. However, having regard to the evidence adduced in the criminal proceedings against Mr Rosenstingl, the court found that there was no indication that Mr Stadler knew before November 1997 that loans or guarantees of the Ring of Liberal Entrepreneurs had been transferred to Rosenstingl’s firm. It followed from the minutes of the trial against Rosenstingl, that the latter had not claimed to have given all relevant documents to Mr Stadler, but had only stated to have met another FPÖ politician in Stadler’s office and to have given documents to that politician.
13.  Referring to Section 6 of the Media Act, the Regional Court found that the statement at issue fulfilled the elements of defamation (üble Nachrede) under Article 111 of the Criminal Code as it insinuated that Mr Stadler had remained inactive despite being aware of fraudulent transactions. Thus, it accused him of behaviour likely to lower him in public esteem. Although the incriminated passage purportedly cited statements of third persons, the applicant company remained responsible since it had failed to present these quotes neutrally without identifying itself with their content. The article’s style and choice of wording did not fulfil the requirements of a neutral presentation. In any case, the quote was not correct as Mr Rosenstingl had not claimed to have given Mr Stadler all relevant documents nor had it been shown that the latter knew otherwise about the transactions. The applicant had, thus, failed to prove the truth of the impugned statement.
14.  On 18 September 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal.
15.  It noted the applicant’s argument that the article was of a satirical nature and that the reader, expecting a certain degree of exaggeration, concluded in essence that Mr Stadler had known more than he admitted, or could have known more had he made the necessary investigations on the basis of the documents given to him.
16.  The Court of Appeal conceded that D.G.’s court room reports differed from usual reports of this genre. His irony and sarcasm were well-known and appreciated by the reader. In the present case however, the issue was not whether the author had made use of some degree of exaggeration. He had simply reported facts which were not true, as no documents at all had been handed over to Mr Stadler. Furthermore, the court confirmed the Regional Court’s view that the article had not quoted third persons’ statements correctly and neutrally.
17.  Finally, the Court of Appeal confirmed that the Regional Court had rightly granted Mr Rosenstingl a right to refuse to give evidence in accordance with the relevant provisions of the Code of Criminal Procedure. As the article at issue had reported on the criminal proceedings against Mr Rosenstingl, it was likely that he would, inter alia, have to give evidence as regards his fraudulent transactions. He therefore risked incriminating himself as regards the charges against him.
18.  The decision was served on the applicant’s counsel on 8 October 2002.
19.  On 14 October 2002 Mr Stadler filed an action under Section 78 of the Copyright Act (Urheberrechtsgesetz) and under Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) requesting the applicant to refrain from publishing his picture accompanied by the incriminated text, to publish the judgment and to pay him EUR 2,000 as compensation for non-pecuniary damage. He also requested a preliminary injunction.
20.  On 22 November 2002 the applicant and Mr Stadler appeared before the Vienna Commercial Court (Handelsgericht) and concluded a partial agreement. The applicant undertook to refrain from publishing Mr Stadler’s picture accompanied by any text similar to the impugned statement, and to publish the agreement. The court therefore limited the hearing to the issue of compensation.
21.  On 3 December 2001 the Vienna Commercial Court ordered the applicant to reimburse Mr Stadler’s costs as regards the part of his claim that was covered by the partial agreement, but dismissed the latter’s claim for compensation.
22.  The Commercial Court, referring to the Supreme Court’s established case-law as regards the binding force of a conviction in subsequent civil proceedings (see relevant domestic law and practice, below), noted that the publication of Mr Stadler’s picture accompanied by the impugned statement which fulfilled the objective elements of defamation, had violated his legitimate interests within the meaning of Section 78 of the Copyright Act. He was, therefore, in principle entitled to receive compensation if the non-pecuniary damage suffered went beyond the annoyance usually caused by the unlawful publication of a picture. However, he had failed to substantiate that he had suffered any such damage.
23.  On 16 October 2003 the Vienna Court of Appeal dismissed Mr Stadler’s appeal.
24.  Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch), as follows:
“1.  Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... 2.  Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... 3.  The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”
25.  Section 78 of the Copyright Act, so far as material, provides:
“1.  Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured.”
26.  Section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
“1.  Anybody who, due to defamation, suffered a damage or loss of profit, may claim for compensation. 2.  The same applies if anyone is disseminating facts, which jeopardize another person’s reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...”
27.  It is the Supreme Court’s constant case-law that a person who has been convicted in criminal proceedings cannot argue in subsequent civil proceedings that he has not committed the offence at issue (lead case 1 Ob 612/95, 17 October 1995, SZ 68/195). The Supreme Court has also held that a judgment under Section 6 of the Media Act has this binding effect in subsequent civil proceedings (6 Ob 105/97b, 16 October 1997).